Canine Assisted Investigation in the Borderlands of Privacy

Dog detection at airports for contraband, in traffic stops for narcotics, at fire scenes for accelerants and at suspect lineups1 are playing an increasingly important role in criminal investigations.2 At the same time, the thresholds of olfactory detection continue to test the limits of privacy, probable cause and due process. Recently, the U.S. Supreme Court decided two cases involving animal assisted investigation. In one instance they lessened the scrutiny of canine reliability3 and in the other reaffirmed the privacy of the home and its surroundings against such searches.4 The fallout from these decisions will add to the evolving body of case law in federal and state courts as they continue to sort out the constitutional limits of this type of investigation.

This article collects significant decisions and scholarship on the ongoing debate about the efficacy of canine searches and their role in defining the scope of search and seizure law.

CASES

Florida v. Jardines, ___ U.S. ___ (2013)"We consider whether using a drug-sniffing dog on a homeowner's porch to investigate the contents of the home is a 'search' within the meaning of the Fourth Amendment.The government's use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment. The judgment of the Supreme Court of Florida is therefore affirmed."

Florida v. Harris, ___ U.S. ___ (2013)"In this case, we consider how a court should determine if the 'alert' of a drug-detection dog during a traffic stop provides probable cause to search a vehicle. The Florida Supreme Court held that the State must in every case present an exhaustive set of records, including a log of the dog's performance in the field, to establish the dog's reliability. See 71 So. 3d 756, 775 (2011). We think that demand inconsistent with the 'flexible, common-sense standard' of probable cause. Illinois v. Gates, 462 U.S. 213, 239 (1983).Because training records established Aldo's reliability in detecting drugs and Harris failed to undermine that showing, we agree with the trial court that Wheetley had probable cause to search Harris's truck. We accordingly reverse the judgment of the Florida Supreme Court."

"The question on which we granted certiorari, 541 U.S. 972 (2004), is narrow: 'Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.' Pet. for Cert. i. . . .Accordingly, the use of a well-trained narcotics-detection dog—one that 'does not expose noncontraband items that otherwise would remain hidden from public view,' Place, 462 U.S., at 707—during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement."

United States v. Place, 462 U.S. 696 (1983)"This case presents the issue whether the Fourth Amendment prohibits law enforcement authorities from temporarily detaining personal luggage for exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the luggage contains narcotics. Given the enforcement problems associated with the detection of narcotics trafficking and the minimal intrusion that a properly limited detention would entail, we conclude that the Fourth Amendment does not prohibit such a detention. On the facts of this case, however, we hold that the police conduct exceeded the bounds of a permissible investigative detention of the luggage."

LAW REVIEWS

Defending the Dog, 92 Or. L. Rev. __ (2013)"This short essay makes the uneasy case for the narcotics dog. Those in favor of U.S. drug enforcement presumably need no convincing, but this Article intends to address the concerns of skeptics who worry about unjust drug enforcement, or who believe that criminalization is just plain bad policy. Dogs are just the first generation of a new set of law enforcement tools that can help us divorce criminal investigation from the bias and discretion that comes with traditional policing.Part I presents the results of new survey research showing that Americans are much more likely to believe police dogs violate the right to privacy when they are used to detect drugs than when they are used to detect dead bodies. Instincts about privacy and criminal procedure are influenced by the unpopularity of drug enforcement policies. Parts II and III make two counter-intuitive arguments in defense of the narcotics dog: (1) in criminal investigations, random error is more equitable than human error; and (2) we should increase the detection and enforcement of crimes that may be over-penalized in order to draw public attention to arbitrary punishment. Those opposed to the criminalization of drugs rely at their peril on the Fourth Amendment to fix a problem embedded in substance rather than the investigation process. The Article concludes with some thoughts about the features of an ideal narcotics dog program."

Detector Dogs and Probable Cause, 14 Geo. Mason L. Rev. 1 (2006)"In this Article, the Author argues that an alert by a detector dog, standing alone, does not provide enough information to a court to allow it to decide whether the alert established probable cause to search. Given the variability of dogs and handlers, courts need access to the particular dog's track record in the field to determine the particular dog's initial rate of accuracy. As the included Bayesian analysis demonstrates, a base rate calculation of some kind is necessary before the determination can be made. The possibility of false positives means that in a given case, an alert by a very accurate dog might not mean that there is even a probability that there is contraband present."

Dog Sniffs, Robot Spiders, and the Contraband Exception to the Fourth Amendment, 7 Charleston L. Rev. 111 (2012)"Does the Fourth Amendment allow law enforcement to use drug detection dogs outside a person's home without prior grounds for suspicion? The question brings into play two lines of Supreme Court precedent. In one set of cases, the Court has stated that investigative procedures do not constitute searches if they only reveal the presence or absence of a specific illegal substance. The Court has applied this principle, which has been referred to as the 'contraband exception,' to uphold the use of drug detection dogs during a routine traffic stop without individualized grounds of suspicion. However, in Kyllo v. United States, the Court stressed the special importance of privacy in one's home in invalidating the warrantless use of a thermal imaging device to discern the temperature inside an individual's residence. In this Article, I contend that the application of the Court's precedents suggests that law enforcement may use drug detection dogs outside a home without a warrant. I also argue that this implication highlights what is wrong with the contraband exception."

Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829 (2009)"This Article argues that a canine drug-detection sniff of a private home is a 'search' under the Fourth Amendment because the sniff is a sense-enhancing tool that provides police information about a home's interior. Scientific research now establishes that drug-detection dogs do not alert to contraband, but instead to break-down products of the illegal drug — decomposition odor constituents that are in no way illegal or even unique to contraband. Therefore, a positive canine sniff produces nothing more than an inference that contraband is also present; sense-enhanced police inferencing that is analogous to the technology-assisted inferencing about a home's interior that the Court rejected in Kyllo v. United States, 533 U.S. 27 (2001), and United States v. Karo, 468 U.S. 705 (1984). Drug-detection dogs are 'natural' technological aids to law enforcement — based on the extensive scientific research conducted to improve canine drug-detection training and to develop breeding and cloning programs that result in detection dogs with enhanced drug-detection capabilities — which implicate Kyllo's concerns regarding 'advancing technology' used to infer the existence of contraband inside a private home. Further, canine home-sniffs are more intrusive than ordinary 'knock and talks' with human officers because (1) detection dogs are often selected for the intimidation that they produce; (2) law enforcement has a long history of using dogs to oppress people of color; and (3) dogs are considered unclean to members of some religions. A canine drug-detection sniff of a private home must be supported by a dog-sniff warrant issued on the basis of probable cause to perform the sniff, not probable cause to search physically the premises."

Need to Carefully Interpret the Statistics Reporting the Accuracy of a Narcotics Detection Dog: Application to South Dakota v. Nguyen, State of Florida v. Harris and Similar Cases, SSRN (2012)"Before carrying out a warrantless search of a person or their property, police officers need to have sufficient information concerning involvement in possible criminal activity to meet the 'probable cause' criteria. In U.S. v. Place, the Court held that dog sniffs of vehicles, stopped for lawful purposes, were not a search. Courts have allowed police to search a vehicle or item after a trained narcotics dog indicates that it contains contraband as the positive indication establishes 'probable cause'. The criteria many courts use to assess the reliability of the dog, the fraction of positive identifications in which drugs were found, however, is the predictive value of a positive test (PVP). While related to the two proper measures of the accuracy of a screening technique, the PVP also depends on the prevalence of contraband in the places the dog has examined. It is will be seen that the same PVP can arise in situations where an accurate dog sniffs items with a low prevalence of contraband or when a much less reliable dog examines items with a high prevalence of drugs. It will be seen that it is mathematically impossible to estimate the two accuracy rates of a narcotics dog from the data typically submitted by the state to show the narcotics dog is reliable. The problem arises because one needs three equations to estimate the prevalence and the two accuracy rates but the data only provides two. These issues will be illustrated on data from actual cases. Rather than continuing to rely on an inappropriate measure of the accuracy of dog sniffs, courts should require more information concerning the accuracy of dogs in their training sessions and in the field as well as better information on the prevalence of drugs in commonly occurring settings, e.g. vehicles stopped for routine traffic violations or items examined after police have received a 'tip'. Then the legal system would have sufficient information to estimate both measures of accuracy of a narcotics dog and its PVP, which would assist courts in determining whether the police had 'probable cause'."

Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs, 14 Loy. J. Pub. Int. L. 251 (2012)"After United States v. Place and Illinois v. Caballes, the central concern for courts asked to determine the admissibility of positive, canine drug-detection sniffs was whether the sniff was performed by a 'well-trained' detection dog - which most courts equated with 'reliability' for purposes of establishing probable cause. Florida v. Harris asks the U.S. Supreme Court to resolve the dispute concerning what evidence trial courts are permitted to consider in determining whether a drug-detection dog is well trained. This Article responds to the State of Florida's assertions in Harris that trial courts must defer to law enforcement determinations of canine-reliability, and should be prohibited from performing independent determinations of reliability by examining detection-dog field performance records. The Article argues that clear incentives exist for law enforcement to use unreliable drug-detection dogs (or dogs with only marginal reliability) in the field: (1) financial self-interest, based on civil forfeiture statutes that authorize police to seize cash discovered during a physical search (which, pursuant to statute, may be placed into local, law-enforcement coffers to supplement law enforcement budgets) based on the money's connection to a drug crime — which is often established by a positive canine alert to the cash, and (2) targeting of certain groups, such as racial or ethnic minorities, for police investigation. Additionally, the State of Florida's argument that law enforcement is deterred from using unreliable drug-detection dogs because 'inaccurate' dogs 'put an officer in harm's way' is a red herring. While traffic stops are dangerous. encounters for law enforcement, those dangers are produced by the officer's decision to stop a particular vehicle — presumably on the basis of probable cause for a traffic violation or other criminal wrongdoing — not a driver's apprehension upon being stopped that his or her vehicle might eventually be subjected to a canine drug-detection sniff. Therefore, trial court consideration of detection-dog field performance records as part of a court's canine-reliability determination is an essential firewall to preventing police use of marginal, or even unreliable, drug-detection dogs."

Passing the Sniff Test: Police Dogs as Surveillance Technology, SSRN (2012)"In October 2012, the Supreme Court of the United States will review the case of Florida v. Jardines, which revolves around the constitutionality of police canine Franky's sniff outside a private residence. Essentially, the Court will need to decide whether or not the sniff constitutes a 'search' for Fourth Amendment purposes. This Article presents a review of the often-contradictory case law that exists on this question to suggest that underlying the various. cases is the Courts' assumption of a juxtaposed relationship between nature and technology. Where dog sniffs are perceived as a technology, the courts have been inclined to also define them as 'searches,' thereby triggering Fourth Amendment protections. Conversely, when perceived as extensions of the officer's natural sense of smell, dogs, like nature, are viewed with 'superstitious. awe' and spared constitutional scrutiny.Rather than use the dominant judicial classification of police dogs as either 'natural entities' or 'advancing technologies' — each of which triggering its own, usually opposite, chain of legal events — I rely on the scholarship of Science and Technology Studies (STS) to suggest treating police dogs as 'biotechnologies': co-produced human-animal hybrids. I argue that although a dog seems to have limited development capacity in comparison to a nonorganic machine, the police dog's various. breeding, improved training, increased application, and machine augmentation render it both a biological entity and an advancing technology. I also argue that despite the common use of dogs as pets, a work dog — and a police detection dog in particular — is clearly not 'in public use.' Specifically, the high cost of breeding, training, and maintaining K-9s, the professional training required, the unique human-animal relationship that develops in the highly volatile police setting, and the status of K-9s as full members of the police force — all demonstrate that K-9 Franky is not, and will probably never be, Spot or Rover. Finally, I claim that such novel categorization of police dogs as both a 'bio' and a 'technology' should at least trigger the same constitutional protections as an infrared device. Under no circumstances should any technology go a-priori unprotected by the Fourth Amendment, even when such technology is an eight-year-old chocolate Labrador retriever named Franky."

Pawing Their Way to the Supreme Court: The Evidence Required to Prove a Narcotic Detection Dog's Reliability, 32 N. Ill. U. L. Rev. 473 (2012)"This Comment examines the evidence needed to establish a detector dog's reliability, in turn establishing the officer's probable cause of an otherwise illegal search under the Fourth Amendment. Part II discusses a brief history of the drug detector dog, including a short analysis explaining how United States v. Place and Illinois v. Caballes paved the way for the discrepancy in recent courts' holdings. Part III reviews several prominent cases regarding this issue that explicitly illustrate the contrasting views of the courts. Part IV argues that courts risk an unnecessary invasion of an individual's privacy when overlooking relevant evidence of a dog's credibility and allowing mere claims of certification to suffice as prima facie evidence of reliability. Finally, Part V concludes by refuting the suggestion that a 'totality of the circumstances' approach goes far beyond what probable cause requires."

Protecting Apartment Dwellers from Warrantless Dog Sniffs, 66 U. Miami L. Rev. 1133 (2012)"This article argues that when the United States Supreme Court decides Florida v. Jardines, No. 11-564, it should hold that a dog sniff for drugs of the exterior of a home is a search under the Fourth Amendment to the Constitution. The Florida Supreme Court had held that a dog sniff of the exterior of a house is a search requiring probable cause and a warrant. However, the Florida Supreme Court did not extend its holding to dog sniffs of the exteriors of apartments and similar dwellings in multi-unit structures. Faced with precedent from other jurisdictions that interprets United States Supreme Court case law to hold that a dog sniff is never a search, the Florida Supreme Court nonetheless endeavored to preserve the sanctity of the home from the intrusion posed by warrantless dog sniffs. Once determined on that path, the Florida Supreme Court should have extended Fourth Amendment protection from warrantless dog sniffs to types of homes other than houses. This article argues that, as homes, apartments and similar dwellings harbor expectations of privacy just as reasonable as those attached to houses, so that if houses receive protection, so should they. The Florida Supreme Court left its task incomplete, but Jardines has presented the United States Supreme Court with an opportunity to revisit its dog sniff jurisprudence, and to preserve the sanctity of the home."

Prying Nose: Florida v. Jardines and Warrantless Dog-Sniff Tests on Private Property, 8 Duke J. Const. Law & PP Sidebar 105 (2013)"K-9 units have become an invaluable resource for police departments and federal agencies in the war against drugs. A trained dog's keen sense of smell alerts officers to the presence of contraband, thereby leading to the prompt apprehension of drug traffickers, dealers, and the like. The United States Supreme Court has approved warrantless use of K-9 units in several situations: public airports, routine drug stops, and narcotics detection points. In Florida v. Jardines, the Court will determine for the first time whether sniff tests on private premises violate the Fourth Amendment. This case will serve as a conduit for the Court to refine the Fourth Amendment's protections of the home. The Court will address whether sniff tests within the curtilage of an individual's residence constitute a search under the Fourth Amendment. The Court will likely decide that its holdings in previous. dog-sniff cases, which involved private property in public places, are inapplicable to the facts present in Jardines. Additionally, because dog-sniff tests violate a homeowner's reasonable and justifiable expectation to be free from the government's prying eyes (and nose) within his home, they likely violate the Fourth Amendment."

Something Smells Rotten: The Practical Consequences of Bad Epistemology in the Context of Drug Sniffing Dogs, Selected Works (2012)"This paper examines the practical consequences of most courts' rational, rather than empirical, epistemology in the context of drug-sniffing dogs. Using the case of Florida v. Harris, this paper criticizes the unscientific attitude of many courts, and argues that, by employing a purely rational epistemology to justify the use of drug-sniffing dogs to establish probable cause, the Court impedes the Constitution's skepticism of, and protection from, arbitrary government intrusions. The paper concludes by proposing a new empirical standard based on the Daubert factors."

ARTICLES

Dog-Scent Lineups – One of the 'Junkiest' of the Junk Sciences, Wrongful Convictions Blog, March 3, 2013"A dog-scent lineup consists of matching a 'scent' sample from a crime scene to a 'scent' sample from a suspect by a dog. The practice has been used in several states, including Alaska, Florida, New York, and Texas. We know that dogs have an incredibly acute sense of smell, but the major problem has been with the handlers of these dogs, who have been proven to be fakes and charlatans."

Let Sniffing Dogs Lie?: Leslie Shoebotham's Brief of Amici Curiae in Jardines v. State, Drug-Sniffing Dogs & False Positives, EvidenceProf Blog, July 10, 2012"[A]ccording to the United States Supreme Court in Caballes, the use of a drug-sniffing dog around an automobile is not a 'search' for Fourth Amendment purposes while, according to the Florida Supreme Court in Jardines, the use of a drug-sniffing dog at the front door of a house is a 'search' for Fourth Amendment purposes requiring probable cause. This thus explains why the United States Supreme Court granted cert in Jardines to resolve the following issue: Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?"

"When we think dogs are using their well-honed noses to sniff out drugs or criminal suspects, they may actually be displaying a more recently evolved trait: an urgent desire to please their masters, coupled with the ability to read their cues."

Tribune Analysis: Drug-Sniffing Dogs in Traffic Stops Often Wrong, Chicago Trib., Jan. 6, 2011"Drug-sniffing dogs can give police probable cause to root through cars by the roadside, but state data show the dogs have been wrong more often than they have been right about whether vehicles contain drugs or paraphernalia. The dogs are trained to dig or sit when they smell drugs, which triggers automobile searches. But a Tribune analysis of three years of data for suburban departments found that only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia. For Hispanic drivers, the success rate was just 27 percent."

REPORTS

Dog Scent Lineups: A Junk Science Injustice (Innocence Proj. of Tex. Sept. 21, 2009)"The use of 'junk science' by police and prosecutors in Texas is an ongoing injustice. Nowhere is this more obvious. than in the government's use of 'scent lineups'—a practice that is happening today throughout the state. The purpose of this report is to summarize the results of our investigation into the use of this 'scientific evidence.'"

Criminal Law: Dog Scent Discrimination Lineups, 63 A.L.R.4th 143"This annotation collects and analyzes the state and federal cases dealing with the legal aspects of dog scent discrimination lineups, a procedure which has been distinguished from dog tracking of humans and dog detection of drugs or explosives, and which is basically of two types: (1) a people lineup, with the dog identifying a person in the lineup whose scent has been given to the dog from an object, and (2) a lineup of inanimate objects, from which the dog identifies one object as having the suspect's scent previously given to the dog."

Evidence of Trailing by Dogs in Criminal Cases, 81 A.L.R.5th 563"In many parts of the country, extensive use is made of bloodhounds and other breeds of dogs in the trailing of fugitives, missing persons, and criminals. Even though the precise scientific basis for dog tracking remains uncertain, it is clear that such dogs can be trained to almost unerringly follow a trail left by particular persons even after some time has passed, and even though the trail has crossed the scent left by other persons. Accordingly, many courts have ruled that in general, evidence of tracking a defendant is admissible, subject to establishment of a proper foundation therefor. For example, in Brooks v. People, 975 P.2d 1105, 81 A.L.R.5th 779, (Colo. 1999), as modified on denial of reh'g, (Apr. 12, 1999), the court ruled that dog scent trailing evidence was admissible if the foundational requirements adopted in a majority of jurisdictions were present, and that neither the 'Frye' nor 'Daubert' standards of 'general acceptance' or 'scientific reliability' for the admission of scientific evidence were applicable. The court went on to find that a proper foundation had been laid for such evidence where the dog handler testified as to his training and experience and the purebred hound dog's training and reliability in tracking humans, where the dog was placed on the scent from footprints at a place where the burglar had quite recently been, where the trail was not so stale or contaminated that it could not be followed, and where there was corroborating testimony. However, other courts have reached differing conclusions as to the admission of canine tracking evidence, both in general or under the particular circumstances presented, as the following annotation illustrates."

Liability, under 42 U.S.C.A. S 1983, for Injury Inflicted by Dogs Under Control or Direction of Police, 102 A.L.R. Fed. 616"This annotation collects and analyzes those federal cases in which the courts discussed the liability of one or more parties under 42 U.S.C.A. S 1983 for physical injuries inflicted by a dog under the control or direction of the police or other peace officers. This annotation includes not only cases against the dog's handler in which it was alleged that the injury inflicted by the dog was the result of excessive force used by the police, but also cases against government agencies and policymaking officials alleging that the dogs and their handlers were improperly trained or supervised, or that there was a custom, policy, practice, or procedure which was responsible for the attack. Excluded are cases where police dogs have violated the plaintiff's right to privacy or caused other intangible injury."

Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of Fourth Amendment, 150 A.L.R. Fed. 399"The Fourth Amendment to the United States Constitution protects people from unreasonable governmental intrusions into their legitimate expectations of privacy, and a subjective expectation of privacy is protected only if society recognizes that expectation as reasonable or justifiable. The court in U.S. v. Garcia, 42 F.3d 604, 150 A.L.R. Fed 719 (10th Cir. 1994), held that a dog sniff of the defendant's luggage to aid law–enforcement officials in the detection of narcotics or drugs absent a reasonable suspicion did not violate the Fourth Amendment, since the expectation of privacy in the contents of luggage does not extend to the air surrounding the luggage. This annotation collects and analyzes those federal cases in which the courts have determined whether the use of a trained dog to detect narcotics or drugs was an unreasonable search in violation of the Fourth Amendment."

Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of State Constitutions, 117 A.L.R.5th 407"The question of whether a canine sniff constitutes a search, and if so, whether a particular canine screening procedure violated the state constitution, has been considered by a number of courts. The court in State v. Tackitt, 2003 MT 81, 315 Mont. 59, 67 P.3d 295, 117 A.L.R.5th 743 (2003), recognizing that, under the search and seizure and privacy protections of the state constitution, a canine sniff may constitute a search, held that a canine sniff of the trunk of the defendant's vehicle was an illegal search, in view of the defendant's reasonable expectation of privacy in the items stored in the trunk, as it was not supported by a particularized suspicion of criminal activity, so that suppression of the information gained pursuant to a subsequent warrant–based search was required. This annotation collects and summarizes those cases in which courts have determined whether the use of a trained dog to detect narcotics or drugs violated state constitutional provisions prohibiting unlawful searches and seizures."

2 See generally Ken Strutin, Canine Detection Evidence, LLRX.com, Sept. 25, 2010 ("Detection or sniffer dogs are used to ferret out illicit and dangerous substances, such as accelerants, explosives, illegal drugs, environmental hazards and other contraband. While these service dogs' abilities are highly touted, the use of an animal's olfactory sense in ascertaining the cause of a fire or locating drugs raises Fourth Amendment, evidentiary and due process issues. This article surveys select studies, standards and resources about canine scent detection evidence.").

3 See Julian Sanchez, Clever Hans vs. the Fourth Amendment, Cato at Liberty, Feb. 19, 2013("In effect, then, the Court [in Florida v. Harris, ___ U.S. ___ (2013)] has handed police what may well be a blank check for pretextual searches, while discouraging the collection of data that might prove that's what they've done.").